Patent system on trial in Apple, Samsung case

The so-called iCourt case of Apple vs. Samsung may say more about whether the patent system serves today's engineers than it does about who copied whom.

At stake in the San Jose case are five Apple patents and a set of registered and unregistered trademarks on very specific elements of Apple's industrial design and software user interface. None of these speak directly to creating a damn fine Web browser in your pocket or a sleek slate on your lap that’s the equivalent of a full-blown PC.

Not surprisingly given the millions of patents issued to date, Samsung has been able to find good examples of what it claims are prior art for each of the five Apple patents. Indeed elements such as a black, rectangular shape with rounded corners, a flat face with a large display and a centered lozenge-shaped speaker are not rocket science. Others thought of them before the iPhone emerged, and Apple was looking at those same prior practitioners in its quest for new ideas.

For its part, Apple has been able to field impressive experts who argued reasonably the Samsung examples were not prior art. Similarly, Samsung has been able to field five patents of its own that are very respectable—including two that appear pretty significant to the 3G networks all modern cellphones use.

Just as Samsung has done, Apple has been able to find examples of what it suggests are reasonable prior art from the pool of millions of existing patents. And Samsung has been able to field experts who make reasonable arguments those examples are flawed in some significant ways.

One gets the impression that if Judge Lucy Koh would not have put a 25 hour time clock on each side’s time with the jury, they would have found prior art invalidating the prior art of the other side. And they would have found credible experts to argue the details of the prior art of the prior art. Madness this way lies.

There’s a lot of grey area to go around here, more than enough for nine average Joes and Janes from San Jose to sort out. At the end of the day their decision may say less about whether Samsung copied Apple or vice versa.

The verdict—whatever it is—may be a measure of how well or poorly the patent system serves the needs of the average engineer and his or her marketing colleague in expressing and protecting genuine innovations.

The verdict also could be colored by emotional issues, such as how the lawyers did or didn’t make an emotional trust connection with the jury, how they raised or failed to raise feelings of distrust for the other side. But that’s another story.

Given that the jury is obligated to follow the Court's instructions, they have limited recourse to render a verdict on the patent system as a whole. But indirectly, by finding invalidity or a lack of infringement on design patents (which strike many lay people as not worthy of the type of protection granted by the system) or by rendering a verdict that does not provide the billions of dollars based on the design patents, the jury may well deliver a subtle message. Apple is likely to prevail, in my view, but with a much smaller award than the $2.5B it seeks.
http://nytechlitigation.com/apple-samsung-verdict-prediction/

IANAL, but my understanding is that in the USA there is a principle called "jury nullification", described quite well on Wikipedia: http://en.wikipedia.org/wiki/Jury_nullification_in_the_United_States
The idea behind jury nullification is that a jury can acquit if they find a law unjust, no matter how the judge instructed them. Justice is in the hands of the jury alone. Legal counsel do not want justice, they want to win. Judges are bound by the law, and not always impartial. So it's up to juries to see that justice is done -- one case at a time.

I can understand a patent is granted based on the ease of assembly or, change of style and look. For example, I can see the bumper is a good design to get a patent. On the contrary, I don't understand how the look can be granted a patent. What's puzzling me is if I made a smartphone of size 4.51x2.35x0.38 (instead of 4.5x2.31x0.35), I should be able to get around infringing Apple patent of iPhone 4. Getting a patent of industrial design, in particular dimension, may protect the product from being copy which will eventually confuse consumer. Nonetheless, to keep competitors away from making similar product is almost impossible.

Chanj, I *think* the patents involved primarily are "Design Patents" rather than "Utility Patents." Loosely speaking, "Design Patents" cover visual shapes, to prevent, hypothetically, New Balance from creating a shoe that looks exactly like a Nike shoe. So Design Patents don't usually have much to do with engineering.

Yes, Apple will prevail. It may be lower in money, but it will deter other to blatantly copy the concept.
@Rick:You took very simplistic approach. Wonderful ideas are historically very simple. If you have encountered any design or designer who makes great product, you may not take away their credit so easily.

This is always the problem. You come up with a great product and your competition copies it. It can be a very blatant copy or something more subtle. Either way, your competitor take part of your market share. Patent law can not stop this, but may slow it. In the end, the consumer wins. The market price for these products will get closer to low margin with competition.

Rick, you hit the head of the issues. One being the patent granting itself is old and probably flawed as it is nearly impossible to gauge the genuine patents. Another issue with the current case at hand is that both Apple and Samsung did not invent anything but only innovated (though to decide who innovated more) the smartphone technologies.

There is not a reasonable patent law that can protect you from others doing a GOOD product. This is about invention, Apple also copied many of its competitors. Even when they improved the design significantly this is not a reason to get a patent. What they don't like is competition, but there are others that can design good systems too.

I think few would dispute that the current patent system is deeply flawed and inadequate. However, it's not clear to me (or perhaps anyone) how the patent system might be altered to address the issues here or provide "justice." The legal system, too, may be ill-equipped.
The trial (and great reporting on it) has focused on a few specific patents related to the shape of the products, etc. When someone brings a great product to market, competitors are obligated to study it and learn from it and try to incorporate the features and characteristics that have made it popular into a design of their own. Ideally, this new design would not only take a page from the market leader but also offer new innovation. This is the way it works across nearly all industries and has been the case for some time. I don't know that there is anything we can or should do to stop this. What riles some people up in this case is the idea that Samsung simply created a copycat product without adding new innovation or raising the bar.

the US patent system is not just archaic, but it hurts the US economy in global by serving individual companies, and the fact that the actual value of the US patents is fare behind of other is still not recognized. Basically the only beneficiary of the patent system are the lawyers, who utilizing the fact of the very low level of technical intelligence of the jury.

Not to diminish the valid points you're raising here, but does the Apple-Samsung case really have much to do with Engineering? I think these are mostly, if not entirely, Design Patents rather than Utility Patents, right?

I am a patent attorney and experienced engineer. I don't understand how the patent system hurts the macro-level economy, as stated by pcsalex.
At its best, the patent system promotes innovation. It encourages inventors to innovate by offering them a time-limited monopoly on their invention. In return, the inventor must make the invention public. This often creates a financial incentive for the inventor to make his or her technology public, so that the inventor can reap financial benefit from his or her invention and so that the invention can be used by anyone after the patent term expires. Because of this, the U.S. Patent Office has become one of the largest and most comprehensive organized libraries for freely-available technology.
At its worst, the patent system hampers innovation by granting patents on so-called frivolous inventions. This can overcrowd a particular industry with lots of little technology monopolies so that no one can innovate without infringing someone else's patent. This tends to happen in industries where there are a lot of players and heavy competition - like the cell phone industry.
For most industries the patent system operates somewhere in the middle, but generally provides a macro-economic benefit. Additionally, patents can be extremely beneficial to small companies, especially to start-ups that need to carve a technological niche and attract investment. (But you usually don't hear about these stories in the news). So I am confused by the statement that the patent system hurts the macro-level economy and serves only individual companies.

First of all, the patent system hurts the consumer, because if two competing companies each own a patent for a specific feature of their product, you will never see a product containing both features. Patents are obtained by companies merely to block competition. The majority of patent applications are both obvious and frivolous. One of our competitors filed an application this year claiming to have invented the use of an accelerometer as a tilt sensor - basically there are trying to patent the laws of physics.

I think it is a matter of scale, rather than scope. As you have stated, there is nothing wrong with the concept of a patent system. However, the sheer number of filings creates a denial-of-service scenario, particularly for individual and SMB filers. Like any DoS attack, it can be mediated by throttling the rate of filing, and that throttling could be accomplished by putting a cap on the number of applications a single filer can make per year. This would force large companies to choose their patent applications well and prevent them from flooding the patent office with dubious "inventions". At the same time, it would again put individual and SMB filers on a more even playing field.

Mr88cet:
That's correct. The main issue in the Apple-Samsung case seems to be design patents - protection on industrial design. A lot of articles analyzing the case criticize design patents because they are easy to get and the innovation they protect is frivolous, and because the legal protections they create are overly strong.

Apple stock is record high now due to the rumor of ipad mini that has 7 inch. If this is true, then is it also a copy of other android devices that has similar "look and feel"? I see why ipad mini news is exciting, but at the same time, I wonder how Samsung and other 7inch tablet maker would react...

In my case, a Tapwave Zodiac 2. The Zodiac was a Palm OS device intended to be a combo PDA and handheld games machine. So it had things like as ATI video chip with 2D accelerations and 8MB video RAM driving a 320x480 screen, Yamaha stereo with stereo speakers on device, 200MB of RAM, and two SD card slots, one of which was SDIO. You could plug a wifi SD card into it and go online, and several browsers existed for the device.
Tapwave went belly up in 2005, but I have three Zodiacs and still use one regularly, mostly as an ebook viewer.

As the iPhone was coming out I purchased my second smart phone, the AT&T Tilt made by HTC. It had a full web browsers (I used Opera until they jumped ship to Apple), the office suite, SD card, media player and thousands of apps as well as some things that Apple has yet to implement.
I had to put up with the iSheep proclaiming how Jobs had invented the smart phone and it was perfect. Now I have to watch as Apple claims to have invented rounded corners and oval slotted speakers that were in my pocket years before.
A big problem is that we are allowing people to patent the obvious. Prior art. Boxes. The Altoids company should litigate the ass off of Apple for stealing its tin box shape.
I think that there should be a multi-level screening process to design patents and the burden of proof should be on the applicant. Show the iPhone housing to the first level and the reply should be "Prior art, rejected" and then Apple would have to show an appeals panel how this shape was unique to the function of the product and that it wasn't just another case. Patents should be unique and hard to get.
Apple should be careful who it sues because there are some critical utility patents that they have infringed on that could be taken out and used against them. Look at Google and its acquisition of Motorola Wireless. I believe that was a tactical move to say to Apple “Go ahead, we dare you”.

An English court as condemned apple on the same patent.
My old palm was working fine with the internet, also the screen was the top of the line for those times.
How may times have you looked to a Hunday side way and thought it was a BMW. I thing Hunday was the originator of the style.
Apple did not invent the computer, it not invented the GUI, it not invented the mouse and did not invent the cell phone.
Patent law were written by big boy lobbyists so they do not defend the little guy against the powerful.

DONALD.RUSS is correct, "A big problem is that we are
allowing people to patent the obvious."
The solution is not to further complicate the USPTO, but
instead realize it's limitations and streamline it.
Patent examiners can't be expected to assess
obviousness, so this is best left for litigation, if a
claimed infringement ever gets that far. The best job
for the USPTO at this point is just to be a recording
facility.
The bottom line is that the patent system was meant
to keep one entity from stealing the intellectual
property from another, but it has turned in to some
sort of game show where the first to claim a certain
arrangement of objects wins the prize. There are good
reasons why history is filled with cases where
independent entities have come up with an idea at the
same time, and I don't see a reason the patent system
should accuse one of these two entities of stealing.
With the USPTO, the government has become a barrier
to entry to the market for innocent small companies
in the name of some "invention" that is really some
arrangement that has not been published before, or
a "design" that has nothing radically new about it.

It's worse than simply allowing people to patent the obvious -- the system also allows people to patent minor variations on prior art, or to re-patent old inventions that have simply been implemented in new technologies.
In so many modern patents, it's almost a joke to refer to some of them as inventions. The stuff that passes for "invention" these days undermines the meaning of the word, and undermines the difference between true innovation and mere product development.

"The patent system is stuck in old, arcane language. It’s deluged by a daily tsumani of applications and old patents, many of which were granted by examiners who lacked the expertise, time, systems—and budget--to conduct thorough reviews."
How would you know? Have you ever filed and prosecuted a patent appln? Have you ever invented anything?
All this talk of bad patents is but a red herring fabricated by a handful of large tech firms as a diversion away from the real issue...that they have no valid defense against charges they are using other parties' technologies without permission. It’s not about reforming the system. It’s about legalizing theft!
The objective of these large firms is not to fix the patent system, but to destroy it or pervert it so only they may obtain and defend patents; to make it a sport of kings. Patents are a threat against their market dominance. They would rather use their size alone to secure their market position. Patents of others, especially small entities, jeopardize that. For example, the proposed change to eliminate the use of injunctions would only further encourage blatant infringement. Any large company would merely force you to make them take a license. They would have little to lose. Everything would be litigated to death -if a small entity can come up with the cash to pursue. That's what these large multinationals are betting against.
Please see http://truereform.piausa.org/default.html for a different and informed view on the patent system.
http://docs.piausa.org/

Moelar: I know because I hold patents, I have had to debate with overextended examiners, and I have spent enough time doing IP consulting work that I have had to do many patent searches. To anyone who does these things and is "skilled in the art", the conclusion obvious.

This article captures my views in a nutshell. Clearly, for the smart phones, there is a 'before iPhone' and an 'after iPhone'. The difference is not in the details (rectangles, rounded corners etc) - it is how the whole thing is put together, how it works with networks, itunes store, apps etc and what we can use it for. Not sure if such a 'system design' can be patented - but that is what the iPhone is. And it was unique when it came to the market.

Could Apple shield themselves from Samsung 3G patents by sourcing through other vendors. Reminds me when Cyrix back in the 90's didn't have a patent cross license to x86 compatibility and sourced wafers through companies (TI and IBM) that did to fend off liability and litigation.
However, who can Samsung source through for the patents that Apple is throwing against them? And this to me is the strategic issue. If Apple wins even one count, Samsung must either change the product, pay Apple, or not produce. There is no other sourcing alternative. And by proxy, the entire Android eco-system.
What is at stake is the strategic implications of what you choose to patent and why. Coca Cola flavor is still Trade Secret protection because there is nothing to gain from patenting. Technology on the other hand has a decaying useful life from the inception of the idea unless it's scope is so fundamental that it is worth going after with the risk you tell your competitor both how you're doing it and how to work around it. All patents are not created equal.

If there were a decent way of finding my past posts related to these subjects ten I would provide links back. But this website lacks a comprehensive way of finding what one posted in the past...
So, lets sat that I had provided sufficient information to reflect that the patent system needs revision.
I have also provided more than a trivial representation that what iPhone provided was available as much as 5 years prior to the announcement of the iPhone. Related to this lookup the Handspring phone. But, the Palm based systems were always deemed business or hobbiest systems and so the real difference between the Handspring phone and iPhone was marketing and availability of lower power more capable hardware 5 years later. iPhone was not a technology nor innovation gain over Handspring phone.
I will give Apple credit in that they defeature products well and thereby allowing them to integrate and polish a product with fewer features attractively.

The patent first was legalized in the republic of Venice around 1500.
It was done for two reasons.
1) give an incentive to invent
2) get the best mind to came to Venice.
The word patent is the Latin litterae patentes open letter and the term patent is from the English empire. The king would give to someone the right to sale or import and other things to someone that payed a large amount of money to get the patent letter giving them the privilege.
Among the other things there was the IP but it was used a lot by merchants to get the exclusive to import goods.
The patent should defend small inventors not the other way.
One thing that should be added is that any invention that is not used for two years is considered abandoned.
I took from the drawer my old palm and it is rectangular with a large screen and bowed short sides no rounded corners.

Rick, the test of the patent system is not whether it serves today's engineers but whether it serves society's interests long term. These can be different things, but the balance has to be struck with the long term in mind.
Battar - You are flying in teh face of reality. The whole industry is producing products that simultaneously contain hundreds of innovations patented by multiple parties. The patent system gives them tools to cooperate, and it gives them tools to fight if that's what they prefer to do. They cooperate 99% of the time and everybody benefits.
giuann, patent laws were about random granted monopolies _before_ 1574 Venice(before 1623 in the UK). The laws we have today were made to sweep that away and to grant limited monopolies only to meritorious innovations. That's all the system is striving to do, even when it is not perfect in everyone's eyes.
I say, don't tinker with the principles of the system (certainly not until you get your head aroud the reality not the mythS!), just focus on quality and learning how to use the system yourself. Patenting the use of an acceleromter as a tilt sensor is not patenting the laws of physics. Anyway, the system is not designed to prevent people filing rubbish applications. The question is what claism will they get granted.

An possible improvement to the patent system would probably require the applicant to include a list of documented working hours spent to invent the invention. And the validity period should match that.

Being listed as inventor or co-inventor on 30-some patents - ALL of them obvious (really, one award was for an LED that was essentially an "idiot light" for a high pressure pump)I concur with many of the previous comments about obvious "inventions". But my clients always want at least a patent application as proof-positive of "due diligence" in case of a claim of infringement. This fear is not unfounded - google Jerry Lemmelson...few corporations have not been sued at least once over one of Jerry's often specious patents. And who can forget the infamous Wang 30 pin memory patent that claimed invention by sticking 8 or 9 DRAMs on a pcb using a 30 pin connector. So when in Rome....

@ost: Since most of the working hours I put toward the patent application I was pressed to process for my design was spent in the application process and the design was catharsis then the patent office would get working hours designing would be zero and the sleeping hours would be .01. I do not think adding documentation of the process of designing will benefit anyone but bean counters.
The problem within the present patent process is not proof of work done. It is proof of uniqueness and verification that it is constructive in nature and not being used to prevent progress my a competing entity. If the patent is not put into use within a reasonable time frame (I am a fan of 18 months as stated in a post to a related article) then it is deemed obstructive and opened for use by anyone.
Obstructive patents or squirreling patents away so that they prevent progress is the worst use of patents. The duration of exclusivity (or license) is amongst the next few poorly chosen features of the patent process.
It's a tribute to human ingenuity to say that we were able to produce more new ideas and products despite the patenting process preventing use of ancient (10 years is ancient in many arenas) methods.

How do you define "put into use", though? Plus, a lot of industries have pretty long horizons from research to selling a product. For example, I know that companies have been spending real money on FinFETs for a good 7 years, and only just recently have you been able to buy a product with them in it. So all of that work should be in the public domain?

This question always came to my mind. Patents can be filed in wide domains and technologies. Does patent granting organizations have the manpower and expertise to do justice to the examination. I guess in the coming era patent related jobs are going to create a revolution.